Kavanaugh Hearings Are Raising Tensions

After four long days, the Senate Judiciary Committee concluded the confirmation hearing process for Judge Brett Kavanaugh this past Friday.

Partisan bickering and folderol abounded, as Democratic and Republican senators alike took advantage of the process to fiercely demonstrate their party loyalties and record soundbites that will inevitably be used for their respective re-election campaigns.

Senate Democrats attempted to latch onto anything they could in hopes that Kavanaugh would slip up, but this was to no avail. This is because, try as they might, those who oppose Kavanaugh’s nomination cannot do very much to stop it.

There is of course the obvious reality that a party-line vote on Kavanaugh’s nomination — which seems quite likely at this juncture — would lead to his confirmation.

But there is also the increasingly bitter pill that liberals must swallow, and it is that there appears to be virtually no way to sink Kavanaugh’s nomination on procedurally neutral grounds.

In other words, there is no “frozen trucker case” like there was for Justice Gorsuch that Democratic senators can point to as a rationale for why Kavanaugh should be voted down.

Kavanaugh has near impeccable credentials, particularly with respect to his law clerk hiring record. A graduate of Yale Law School and a current judge on the U.S. Court of Appeals for the D.C. Circuit, he has hired 48 law clerks throughout his career. Of these, 25 have been females and 13 have come from a racial minority (including five African-Americans).

While these statistics might not seem all that impressive, they are in fact “nearly unheard of among Kavanaugh’s judicial peers,” Luke McCloud, a former clerk, remarked during the hearings.

The numbers stand in stark contrast to Justice Ginsburg’s hiring record, for example, when she served on the D.C. Circuit. Incredibly, she did not hire a single African-American law clerk during her thirteen years on that bench.   

Perhaps more than any other judge, Kavanaugh has managed to deftly signal to the political right that he is all one could possibly want in a Supreme Court justice.

As Washington University Associate Professor of Law Dan Epps noted in the podcast First Mondays (co-hosted with fellow law professor Ian Samuel), Kavanaugh has managed to “walk an incredibly fine line throughout his career” in that we have a great deal of information about his decidedly conservative jurisprudential commitments, but he has nonetheless been very careful to “never quite say” exactly what he thinks about any particular high-valence political issue.

But it is no secret that Kavanaugh will almost certainly rule in a manner unfavorable to Roe v. Wade and Planned Parenthood v. Casey, as many commentators have pointed out.

Pro-choice Republican Senator Susan Collins has affirmed that she will oppose any nominee who shows “hostility” towards those precedents, but it is unclear whether she considers the remarks that Kavanaugh made in a 2003 email — in which he declared that not all legal scholars regard Roe as “the settled law of the land” — as sufficient to vote against him.

So the confirmation hearings did not really change much at all. They merely confirmed what many have known for a while, which is that President Trump will likely secure not one but two coveted nominations to our nation’s highest court.

It’s hard to believe that all of this began simply because a particular octogenarian woke up one day and decided that he would retire.